2.1.1

a “ person ” includes bodies corporate and unincorporated associations of people;

2.1.2

a clause, Schedule, paragraph, section, Exhibit, Appendix or Annex are, except where otherwise stated, a reference to a clause, Schedule, paragraph, section, Exhibit, Appendix or Annex to this Agreement. The Schedules form part of this Agreement and shall be read as though they were set out in this Agreement;

2.1.3

a word importing one gender shall (where appropriate) include any other gender and a word importing the singular shall (where appropriate) include the plural and vice versa;

2.1.4

any statute or statutory provision includes, except where otherwise stated, the statute or statutory provision as amended, consolidated or re-enacted from time to time and includes any subordinate legislation made under the statute or statutory provision (as so amended, consolidated or re-enacted) from time to time;

2.1.5

“ including ”, “ includes ” and “ in particular ” are illustrative, none of them shall limit the sense of the words preceding it and each of them shall be deemed to incorporate the expression “ without limitation ”. “ Other ” and “ otherwise ” are also illustrative and shall not limit the sense of the words preceding them;

2.1.6

words denoting persons include bodies corporate and unincorporated associations and vice versa where the context requires. The words “ subsidiary ” and “ holding company ” shall have the meanings given to them in section 1159 and schedule 6 of the Companies Act 2006;

2.1.7

the index and headings in this Agreement and any descriptive notes in brackets are for convenience only and shall not affect its interpretation; and

2.1.8

in the case of any inconsistency between any provision of the Schedules to this Agreement and any term of this Agreement the latter shall prevail. In the case of any inconsistency between any provision of the Annexes or Appendices and any provision of the Schedules, the latter shall prevail.

4.

SERVICES

4.1

The Service Provider shall provide the Services to the Customer and the Customer Group in accordance with the terms of the Agreement and also:

4.1.1

in accordance with the requirements set out in the applicable Schedules save for immaterial or cosmetic deviations;

4.1.2

with diligence, professionalism and in accordance with Good Industry Practice (defined below);

4.1.3

with sufficient, suitably trained and qualified resources to provide the Services;

4.1.4

in a cost-effective manner, but without prejudice to the level of quality and performance required;

4.1.5

in accordance with the relevant time frames specified or if none are specified, within a reasonable time frame;

4.1.6

in material compliance with the Customer Standards and Policies made available to it in writing from time to time (with changes managed via the Contract Change Control Procedure);

4.4.1

any services, functions or responsibilities performed within the twelve (12) month period immediately preceding the Effective Date by the Customer’s employees, agents and/or contractors whose functions were displaced as a result of this Agreement, even if the service, function or responsibility is not specifically described in this Agreement unless such function or responsibility is specifically identified in this Agreement as either no longer being required or as being the responsibility of the Customer; and

4.4.2

any services, functions and responsibilities reflected in those categories of the Customer’s budget that the Service Provider is assuming pursuant to the Agreement unless the same are specifically identified in this Agreement as either no longer being required or as being the responsibility of the Customer.

4.8

The Customer shall have the right to suspend the provision of Services at any time where either:

4.8.1

the provision of Services is, in the Customer’s reasonable opinion, having an adverse impact on the Customer’s business or the experience of its customers or staff; or

4.8.2

the Service Provider is in material breach of its obligations under this Agreement.

4.9

In the event of suspension pursuant to clause 4.8, the Service Provider shall:

4.9.1

in the case of both clauses 4.8.1 and 4.8.2 immediately cease providing the affected Services; and

4.9.2

in the case of clause 4.8.2 only, and save to the extent any ramp down benching or other costs are agreed in this Agreement, will cease to have any entitlement to charge for the Services.

4.10

The Customer shall have the right to require that any Services suspended pursuant to clause 4.8 re-start at any time provided that if the period of suspension has continued for longer than one (1) month, at least one (1) week’s notice shall be required and if the period of suspension has continued for longer than three (3) months, at least one (1) month’s notice shall be required.

5.2.4

identify clearly which Services, Milestones (if any), Performance Standards and/or other Agreement obligations are likely to be affected and, in the reasonable opinion of the Service Provider, the extent to which they are likely to be affected; and

5.2.5

identify as far as possible the extent to which the Service Provider’s fulfilment of the relevant obligations under this Agreement will be delayed, interrupted or otherwise affected.

5.3

If the Service Provider fails to achieve a Milestone, at no additional charge to the Customer, and without prejudice to the Customer’s other rights, the Service Provider shall (as the case may be):

5.3.1

continue to provide the Services so as to meet the Milestone or complete Transition as soon as possible after the Milestone Date; or

5.3.2

re-perform the Services so as to meet the Milestone or complete Transition as soon as possible after the Milestone Date; and

5.3.3

ensure that any cost reductions planned to take effect at such Milestone shall in any event be realised by the Customer as of the planned Milestone Date.

5.4

If the delay or interruption continues for more than five (5) Business Days, the Service Provider shall provide the Customer periodically (and at least on a weekly basis) with updated information in relation to the matters referred to in clause 5.2, notwithstanding any discussions or negotiations relating to the continued performance of this Agreement following a Force Majeure Event or the Customer exercising its other rights.

6.8.1

require the Service Provider to rectify any defects and re-submit the Acceptance Item for acceptance;

6.8.2

accept the Acceptance Item subject to an equitable reduction in fees (which shall be at least 10% or such other greater sum as is agreed); or

6.8.3

immediately terminate the affected Services for material breach and be refunded all Charges paid under this Agreement in connection with the same, in which case the Customer shall not use the rejected Acceptance Item.

6.9

In no circumstances shall the Customer be deemed to have accepted an Acceptance Item, other than where it is unconditionally accepted and an Acceptance Certificate is issued.

6.10

If the Customer conditionally accepts an Acceptance Item, it shall notify the Service Provider of the conditions to which the acceptance is subject and the Acceptance Item shall not be fully accepted until such conditions have been met. Any payments related to acceptance shall not be triggered by a conditional acceptance unless agreed otherwise in writing in a Change Request, it being agreed that such agreement may include an agreement that the defects or backlog of issues shall be completed within an agreed period.

7.1.1

so as to cause minimal disruption to the business of the Customer (and in any event only that disruption agreed in the Transition Plan or other applicable Transformation Plan); and

7.1.2

in accordance with the Milestones set out in the agreed Transition Plan (or other applicable Transformation Plan).

7.2

The Service Provider shall be responsible for the overall management of the project and shall identify and resolve, or assist the Customer in the identification and resolution of, any problems encountered in the timely completion of each task identified in the Transition Plan (or other applicable Implementation Plan), whether the task is the responsibility of the Service Provider, the Customer or a third party.

7.3

The Service Provider shall provide the Customer with weekly progress reports that describe in reasonable detail the current status of the Transition, indicate the progress of the work being performed, identify any actual or anticipated problems or delays, assess the impact of such problems or delays on the Supplier’s provision of the Services and describe all actions being taken or to be taken to remedy such problems or delays.

7.4

The Service Provider further agrees that the Acceptance procedure set out in clause 6 shall apply with the Acceptance Item being the effective transfer of the applicable service to the Service Provider.

8.5

The Service Provider agrees that if an agreed trigger event occurs (it being agreed that this shall include if: (i) there are repeated delivery or service failures; (ii) there is a major one off failure such as a failure to achieve Transition Milestones; (iii) and/or it fails to comply with its rectification obligations) then it will commit to executive escalation as follows:    

8.5.1

as a first level of executive escalation (“ Executive Escalation (a) ”) the Service Provider has agreed that should Executive Escalation (a) be triggered then Service Provider’s Global Operating Leader (named in the Agreement as a member of the Key Personnel) shall relocate to the Customer’s offices for four (4) full Business Days per week to lead the Service Provider’s team and to explain progress; and the Service Provider’s Chief Operations Officer or his or her nominee who shall be of at least equivalent standing/seniority shall telephone the Customer’s CEO once each week to report progress. Without prejudice to its other rights and remedies the Customer may in its sole and absolute discretion elect to waive or defer Executive Escalation (a); and

8.5.2

as a second level of executive escalation (“ Executive Escalation (b) ”) the Service Provider has agreed that should Executive Escalation (a) not result in the successful resolution of the issue that gave rise to Executive Escalation (a) then the Service Provider’s Chief Operations Officer or his or her nominee who shall be of at least equivalent standing/seniority (and not the person already identified as Executive Escalation (a)) shall relocate to the Customer’s offices for three (3) full Business Days per week to lead the Service Provider’s team and to explain and report progress. Without prejudice to its other rights and remedies the Customer may in its sole and absolute discretion elect to waive or defer Executive Escalation (b).

10.

HOLDBACK, SERVICE LEVELS AND LIQUIDATED DAMAGES

10.1

If the Service Provider fails to achieve a Key Milestone for any reason other than a Force Majeure Event or a failure by the Customer to meet a Customer Dependency, without prejudice to its other rights and remedies, the Customer may claim the Liquidated Damages associated with that Key Milestone (if any), in which case:

10.1.1

the Liquidated Damages amount shall be deducted from the next invoice or paid to the Customer if there are no further invoices due to be rendered under the Agreement within thirty (30) days from the date of the invoice issued by the Customer; and

10.1.2

the Parties agree that the Liquidated Damages are a genuine pre-estimate of some of the loss the Customer is likely to suffer as a result of the Service Provider’s failure to achieve a Milestone.

10.2

The Service Provider agrees that [***] per cent ([***]%) of any payments made during or at the completion of Transition shall be held back (the “ Holdback ”) pending final completion of all Transition activities and cut over to the provision of Services by the Service Provider in accordance with the agreed Service Levels.

10.3

The Service Provider acknowledges that any failure to provide a Service to a Performance Standard may have a material adverse impact on the business and operations of the Customer and that, accordingly, it shall

10.3.1

at all times achieve or exceed the Performance Standards in respect of the Services; and

10.3.2

shall perform the Services with at least at the same level of performance (including in respect of accuracy, quality, timeliness, responsiveness and efficiency) as was provided by or for the Customer prior to the Effective Date (unless expressly agreed to the contrary in the Agreement) or, if higher, in accordance with Good Industry Practice.

10.4

Each Party acknowledges and agrees that any Service Credits that may become payable are an adjustment to the Charges and that the payment and receipt of Service Credits and/or Liquidated Damages is without prejudice to any other right or remedy available to the Customer as a result of the Service Provider’s failure to meet the relevant Service Levels or achieve the relevant Milestone (as applicable).

10.5

In addition to Service Levels, the Service Provider shall measure other key indicators of performance of the Services (including by carrying out a customer satisfaction survey) and shall provide such measurements to the Customer in order for the Customer to fully understand the levels of performance of the Service being provided by the Service Provider.

10.6

At the Customer’s election, Service Levels may be added, deleted or revised due to change in the Customer’s business requirements once suitable agreement on the impact of such changes on the Service and the Service Credits has been reached.

11.

SERVICE IMPROVEMENT AND ADVANCES IN TECHNOLOGY

11.1

The Service Provider shall keep the Systems, methodologies and processes used by the Service Provider in performing the Services current and the Customer shall receive the benefits of upgrades in the same through increases in efficiency and productivity.

11.2

The Service Provider shall cause the delivery of the Services, as approved by the Customer, to evolve and be modified, enhanced, supplemented and replaced as necessary for the Services to keep pace with advances in the methods of delivering services, where such advances are at the time pertinent and in general use. Accordingly, the Service Provider shall proactively seek out new technologies by surveying the market and the technology landscape more generally to identify advances or changes in technology that are appropriate and beneficial to the Customer.

12.

TRANSFORMATION OPPORTUNITIES AND REFERENCE

12.1

In addition to the baseline improvements in service quality and reduction in charges and costs agreed as of the Effective Date and to be delivered as part of Transition of the agreed Services, the Service Provider shall actively seek out costs reduction opportunities throughout the Term through Transformation and, subject to the Customer’s approval, shall implement the same in order to pass on the benefit of costs savings to the Customer.

12.2

If the Service Provider identifies technology or processes that change the manner in which the Services are supplied including where such changes could result in cost reductions to the Service Provider, the Service Provider shall notify the Customer. The Parties shall discuss the proposed changes and the Service Provider shall provide the Customer with suggestions and a plan for implementing the changes and any cost benefits. If the Customer wishes to implement the changes then such changes and the impact on Charges shall be agreed pursuant to Change Control.

12.3

In accordance with Schedule 8 (Transition and Transformation) the Service Provider shall submit to the Customer a draft Transformation Plan for the Customer’s review and approval and shall revise the Transformation Plan as requested or approved by the Customer. The Transformation Plan shall be additional to the improvements and transformational activities to be carried out during Transition or agreed to be carried out in any event as at a particular Service Commencement Date.

12.4

Each Transformation Plan after the first shall review and assess the immediately preceding Transformation Plan.

12.5

The Transformation Plan shall include suggestions and plans, including cost benefits, for improving productivity beyond the Service Levels and/or reducing the Charges. Upon approval by the Customer, any such suggestions may be incorporated into this Agreement pursuant to the process set out in Schedule 8 (Transition and Transformation).

12.6

The Service Provider shall use the Customer as a referee in relation to at least two (2) bids each year. Such bids shall be for services broadly similar to the Services for clients of a similar size to the Customer. Failure to do this shall, without limitation, require the Service Provider’s CEO (or his or her designee who is of no less seniority than a Senior Vice President) to provide detailed reasons for such failure to the Customer’s CIO.

13.

ASSETS

13.1

In the event the Customer deems it necessary to require the Service Provider to use equipment owned or operated by the Customer (“ Customer Equipment ”), the Service Provider shall be responsible for transfer of the Customer Equipment to the Service Provider’s Service Locations and the Parties will agree via the Contract Change Control Procedure, the costs, maintenance and warranty obligations applicable to any such Customer Equipment to be so managed.

13.2

The Customer makes no warranties with regard to the Customer Equipment (if any).

13.3

The Service Provider shall be fully responsible for monitoring the operation of and maintenance of the Customer Equipment (if any) and shall promptly notify the Customer of any issues with the same that may impact the provision of the Services or achievement of the Service Levels.

13.4

The Service Provider may, where directed to do so by the Customer, acquire future equipment (“ Future Equipment ”), including modifications, upgrades, enhancements, additions and replacements of the Customer Equipment, as necessary or appropriate to provide the Services. Such Future Equipment shall be acquired in the name of the Customer and title shall vest in the Customer at the Customer’s cost. The Parties shall agree such matters pursuant to the Contract Change Control Procedure and may agree that purchases can be in the name of the Service Provider subject always to arrangements being made to transfer title to the Customer in the event of termination or exit.

13.5

The Customer shall have the right to approve any Software or Service Provider Tools used by the Service Provider in relation to the Services and installed on Customer Systems prior to the Service Provider’s use of the same in order to provide the Services, which approval shall not be unreasonably withheld or delayed. The Service Provider shall, at its own expense, be responsible for:

13.5.1

installing, operating and maintaining the Service Provider Software and Service Provider Tools; and

13.5.2

managing, modifying and using any other software, systems or materials (including the Customer Software, Customer Systems and Customer Materials) required to provide the Services.

13.6

Each Party shall be responsible for risk of loss of, and damage to, Equipment, Software or other Material in its possession or under its control, provided that Service Provider will notify the Customer prior to installing any single piece of Equipment worth more than fifty thousand GB Pounds (£50,000) at a Customer Location.

13.7

The Service Provider shall be responsible for the risk of loss of, and damage to, any property, Systems or Material used by it to provide the Services, except to the extent that any loss of, or damage to, any such property, Systems or Materials is caused by an intentional wrongful act or omission of the Customer or Customer Personnel.

14.

CO-OPERATION AND THIRD PARTY CONTRACTS

14.1

The Service Provider acknowledges that it will be delivering the Services to the Customer in a multi-vendor environment. Accordingly, the Service Provider shall co-operate in good faith with the Customer, to the extent relevant to obtain the benefit of the Services, and with the Customer’s other suppliers to facilitate the integrated and efficient carrying out of the Customer’s operations and the provision of the Services. Such co-operation shall include providing advice, assistance, data and information as reasonably required by the Customer and (subject to reasonable confidentiality provisions being in place) its suppliers.

14.2

Where applicable to its service model, the Service Provider will agree to specific operation level agreements with those Third Party Service Providers of the Customer identified by the Parties from time to time and, without prejudice to the generality of clause 14.1, the Service Provider shall comply with such co-operation obligations.

14.3

During Transition, the Parties will identify any third party contracts under which a Third Party Service Provider furnishes or provides services to the Customer that are associated with the Services and which are required to be maintained in the name of the Customer (or its Affiliates) and managed by the Service Provider (" Managed Agreements ").

14.4

Without prejudice to the generality of its obligations under clauses 14.1 and 14.2, the Service Provider agrees that in relation to any such Managed Agreements, it will monitor the performance of each applicable Third Party Service Provider and take steps to address with each Third Party Service Provider any issues arising with its performance and shall promptly escalate any concerns it may have with respect to such performance to the Customer.

14.5

The Service Provider shall ensure that reasonable knowledge transfer takes place between it and the applicable Third Party Service Providers including in relation to:

14.5.1

difficulties and issues such Third Party Service Providers may encounter in delivering their services in the context of the Service Provider’s provision of the Services;

14.5.2

information regarding the operating environment, system constraints and other operating parameters applicable to the provision of the Services by the Service Provider as a supplier with reasonable technical skills and expertise would find reasonably necessary in order to perform its work; and

14.5.3

such information as is necessary to assist each such Third Party Service Provider to ensure that the results of its services have the ability to interoperate with the Services.

14.6

The Parties acknowledge that from time to time the Service Provider may need to appoint third parties as its sub-contractors in order to enable it to perform aspects of the Services. The Service Provider agrees that the Customer shall have the right to nominate certain Third Party Service Providers to be its sub-contractors in relation to such Services and that it shall then enter into direct contracts with such Third Party Service Providers who shall thereafter be treated as sub-contractors of the Service Provider for the purposes of clause 17.

15.2

The personnel assigned to the Customer account by the Service Provider (or its sub-contractors) will be and remain employees of the Service Provider (or such sub-contractors) (“ Service Provider Personnel ”) and the Service Provider (or such sub-contractors) shall be liable for all taxes, national insurance and other costs, compensation and benefits of such personnel, including salary, health, accident and workers’ compensation benefits, pensions and contributions that an employer is required to pay with respect to the employment of employees related to the Service Provider Personnel (“ Employment Costs ”).

15.3.1

additional work in connection with the performance of the Services by the Service Provider that would have otherwise been unnecessary in the absence of such action or inaction; or

15.3.2

additional work for the Customer to enable it to obtain the full benefit of the Services,

15.4

The Customer shall have the right to require the removal of any member of the Service Provider Personnel assigned to perform under this Agreement where such Service Provider Personnel’s performance and competence, responsiveness, capabilities, cooperativeness, ability to work within the Customer’s culture, or fitness for a particular task of any person assigned by the Service Provider to perform Services, is insufficient to perform the Services in a manner acceptable to the Customer. Without prejudice to the foregoing, the Service Provider shall furnish a qualified replacement as soon as reasonably practicable but in all cases, within ten (10) days of the removal.

15.5

The Customer shall have the right to designate certain employees of the Service Provider or its sub-contractors as key employees (the “ Key Personnel ”), provided that the Service Provider may reasonably refuse such designation. The Parties have agreed in Schedule 18 (Key Personnel) a maximum number of Key Personnel across each Service Tower during Transition and following the applicable Service Commencement Date. The Key Personnel shall devote sufficient effort to perform their role in the delivery of the applicable Services. The Key Personnel will be listed in Schedule 18 (Key Personnel) to this Agreement.

15.6

The Service Provider shall only remove or change the Key Personnel with the written consent of the Customer except where the removal or change results from resignation, death, disability, or termination of employment of the Key Personnel in question in which case the Service Provider must promptly notify the Customer of such removal and the proposed replacement.

15.7

The Service Provider may only assign or replace any Key Personnel with the Customer’s prior written consent (which in the circumstances set out above shall be deemed to have been given) and only after the Service Provider has provided the Customer with the relevant curriculum vitae of the relevant Key Personnel and with a reasonable opportunity to interview such Key Personnel. At no additional cost to the Customer, the Service Provider will provide for an appropriate transition (including overlap) period for the new individual so that there is no disruption to the performance of the Service Provider’s obligations or the Customer’s receipt of the Services under this Agreement.

15.8

Save for any exceptions agreed in Schedule 17 (Staff Transfer), each Party agrees that during the term of this Agreement and for a period of one (1) year thereafter, it will not and will procure that its Affiliates will not directly or indirectly, either on its own account or in conjunction with or on behalf of any other person, hire, solicit or endeavour to entice away from the other Party any person who, during the term of this Agreement has been an officer, manager, employee, agent or consultant of the other Party. The Parties agree that to the extent required by Relevant Law, this restriction shall not apply to responses made to bona fide job advertisements.

16.

SERVICE LOCATIONS

16.1

When working at any Customer facilities, Service Provider Personnel shall comply with the requirements of Schedule 22 (Locations and Site Licence) and all applicable Standards and Policies, including the Customer’s standard workplace security, administrative, safety and other policies and procedures applicable to the Customer’s own employees or contractors (“ Customer Location Policies ”) and the Customer IT and Security Policies as set out in Schedule 7 (Security – IT and Physical).

16.2

The Customer shall notify the Service Provider of any subsequent modifications or amendments to the Customer Location Policies. Any such changes to the Customer Location Policies which impose materially increased obligations or costs on the Service Provider, shall be agreed through Change Control.

17.

SUB-CONTRACTORS

17.1

The Service Provider shall not delegate or subcontract any of its obligations under this Agreement without the prior written consent of the Customer and shall ensure that obligations akin to those set out in Schedule 17 (Staff Transfer), 5 (Sub-contractor List), 7 (Security - IT and Physical), and 21 (Data Processing and Transfer) are included in any key subcontracts.

17.2

The Customer acknowledges and agrees that the consent required pursuant to clause 17.1 has been granted in respect of those Approved Sub-contractors identified in Schedule 5 (Sub-contractor List) and any sub-contractor it formally requires the Service Provider to use in connection with the provision of the Services pursuant to clause 14.6.

17.3

The Customer may revoke its approval of a sub-contractor if it has good faith doubts about the sub-contractor’s ability to perform the subcontracted Services.

17.4

The Service Provider shall on request advise the Customer of the impact of any revocation action pursuant to clause 17.3 by the Customer including any impact on the timetable and the charges.

17.5

If the Customer wishes to proceed with the revocation action pursuant to clause 17.3 then any changes shall be agreed through Change Control.

17.6

The Parties agree that there will be no impact on the Charges if the Customer revokes its approval of a sub-contractor as a result of any fraud, fraudulent misrepresentation, Wilful Default or any other criminal act by a sub-contractor or its employees.

17.7

If the Customer consents to the Service Provider’s proposed use of a sub-contractor to perform the Services (or part thereof) the Service Provider shall remain fully responsible and liable for the acts and omissions of the sub-contractors to the same extent as if such acts and omissions were those of the Service Provider.

18.

DATA AND SECURITY REQUIREMENTS

18.1

The Service Provider shall comply with the current Standards and Policies relating to IT and security and the requirements of Schedule 7 (Security – IT and Physical) at no additional cost to the Customer. If the Standards and Policies change, the Service Provider will review such changes, and notify the Customer of any implications of such changes. Any such changes to this Agreement or the Services required as a direct result of the changes to the Standards and Policies and/or the requirements of Schedule 7 (Security – IT and Physical) will be agreed through Change Control save that the Charges shall only be increased where the changes materially increase obligations or costs on the Service Provider.

18.2

The Service Provider shall provide ongoing training for all the Service Provider’s Personnel employed or engaged in the provision of the Services in compliance with the Standards and Policies.

18.3

Without limiting clause 18.1, the Service Provider shall comply and shall ensure that all sub-contractors comply with vetting procedures and policies in respect of all Service Provider Personnel that comply with Good Industry Practice.

18.4

The Service Provider shall ensure that the principles and processes of ISO 27001 and ISO 9001 are reflected in its performance of the Services.

18.5

The Customer shall retain exclusive rights and ownership of all of Customer Data and the Customer Data shall not be:

18.5.1

used by the Service Provider for any purpose other than as required under the Agreement in connection with providing the Services;

18.5.2

disclosed, sold, assigned, leased or otherwise provided to third parties by the Service Provider; or

18.5.3

commercially exploited or otherwise used by or on behalf of the Service Provider, its Affiliates, officers, directors, employees, or agents, other than in accordance with the Agreement.

18.6

Upon request by the Customer and at its election and at no additional charge, the Service Provider shall promptly return to the Customer the Customer Data in the format and on the media as reasonably requested by the Customer, or erase or destroy Customer Data in the Service Provider’s possession, power or control and, if requested by the Customer to do so, shall provide the Customer with confirmation in writing signed by a corporate officer of the Service Provider.

18.7

The Service Provider shall protect the Customer’s Data in its possession, power or control so as to not lose, damage, destroy, corrupt or enable unauthorised access or disclosure of the Customer Data.

18.8

Pursuant to the requirements of Schedule 7 (Security – IT and Physical), the Service Provider shall establish and maintain all appropriate technical and organisational controls to safeguard against the destruction, loss, alteration and unauthorised access or disclosure of Customer Data that are no less rigorous than those operated by the Customer as of the relevant Service Commencement Date and that are no less rigorous than those maintained by the Service Provider for the Service Provider’s own information of a similar nature or that otherwise comply with Good Industry Practice.

18.9

Service Provider Personnel must not attempt to access, or allow access to, Customer Data to which they are not entitled or that is not required for the performance of the Services by Service Provider Personnel.

19.

DISASTER RECOVERY

19.1

Without prejudice to any Services relating to disaster recovery or business continuity the Parties may agree, the Service Provider shall manage and maintain internal disaster recovery and business continuity policies and procedures consistent with Good Industry Practice and the requirements of Schedule 16 (Business Continuity and DR Plan) throughout the Term at no additional cost (beyond that (if any) specified in Schedule 10 (Charging & Invoicing)) to the Customer.

20.

REGULATORY MATTERS AND AUDIT RIGHTS

20.1

The Service Provider shall comply with all Relevant Law applicable to the provision of the Services and in performing its obligations under the Agreement generally insofar as they relate to it as a provider of business process services or where the following sentence applies. Without prejudice to the generality of the foregoing, the Customer may notify the Service Provider of any Relevant Laws it specifically requires the Service Provider to comply with (which would include any requirements set out in the Standards and Policies to either comply with Relevant Laws referenced there or to ensure compliance with Relevant Law by following certain policies or procedures). For the avoidance of doubt, such notifications may relate to compliance with Relevant Law in any jurisdictions worldwide in which the Customer or its Affiliates operate or do business from time to time. The Service Provider shall make any modifications to the Services as reasonably necessary as a result of changes to Relevant Law at no extra cost to the Customer other than where the relevant modification is required to address a change in Relevant Law that is specific to the Customer in which event the effect on cost shall be assessed by the Contract Change Control Procedure.

20.2

The Service Provider recognises that the Customer and its Affiliates are subject to regulation by (or has regulatory responsibilities in respect of) the regulatory authorities in the jurisdictions in which it operates and that, in particular, the Customer has regulatory responsibilities in respect of:

20.3

The Service Provider shall provide such cooperation with all applicable regulatory authorities as may reasonably be requested by the Customer or otherwise required by such authorities and in any event shall cooperate with both the Customer and any regulatory authorities in responding to any enquiries made by such authorities. Such cooperation shall be provided at the Customer’s reasonable cost. The Service Provider’s obligations under this clause 20.3 shall include:

20.3.1

providing, on request, such assistance as the Customer may reasonably require to prove its compliance with its regulatory requirements in the context of the Services;

20.3.2

providing to the Customer such information and/or documentation as a regulatory authority may request in its supervision of the performance of the Services and it consents to such information and documentation being passed on to the relevant regulatory authority; and

20.3.3

in addition to the Customer’s own audit rights hereunder, permitting a regulator to carry out audits of the Service Provider where such regulator requires the right to do so.

20.4

The Customer (or its nominee) shall be entitled to audit the Service Provider’s conformance with its obligations under the Agreement (including to verify the Charges) and the relevant Service Provider’s facilities in each case in respect of:

20.5.2

consolidate such audits for each Service Tower and key Customer Location, where possible.

20.6

Subject to the restrictions in clauses 20.4 and 20.5 (other than in relation to the frequency of audits), the Customer (or its nominee) shall be entitled to undertake no more than two further audits in that same year across the Agreement as a whole and/or in respect of each Service Tower, (with the Service Provider providing all reasonable co-operation) at its own cost, unless such audits reveal fraud, a breach of the Agreement (including all instances of over-charging), in which case the cost of the audit shall be borne by the Service Provider.

20.7

If, as a result of an audit, it is determined that the Service Provider has overcharged the Customer, the Customer shall notify the Service Provider of the amount of such overcharge and the Service Provider shall promptly pay to the Customer the amount of the overcharge, plus interest at a rate of two per cent (2%) above the annual base rate of the Bank of England from time to time calculated from the date of receipt by the Service Provider of the overcharged amount until the date of payment to the Customer.

20.8

In the event any such audit by the Customer or its agents reveals an overcharge to the Customer by the Service Provider of five per cent (5%) or more of a particular fee category, the Service Provider shall reimburse the Customer for the cost of such audit in addition to the repayment of the sum plus interest at the rate set out above.

20.9

The Service Provider agrees that the restrictions on the Customer’s right to conduct audits set out in clause 20.4 will not apply to audits required for legal or regulatory reasons.

20.10

If any audit by an auditor designated by the Customer or a regulatory authority having jurisdiction over the Customer results in the Customer being notified that it is not in compliance with any generally accepted accounting principle or audit requirement relating to the Services, the Service Provider shall, at its own expense and within the period of time specified by such auditor or regulatory authority, bring the Services into compliance. If the Service Provider fails to bring the Services into compliance within a reasonable time the Customer shall be entitled to terminate this Agreement for on the grounds of the Service Provider’s irremediable material breach of contract on the provision of written notice.

20.11

The Service Provider shall maintain and retain in a manner that complies with Good Industry Practice accurate records (including complete financial records of its operations and activities) in relation to the provision of the Services for seven (7) years after the creation of such record (which would include any part of such seven (7) year period after the termination or expiry of the Agreement) and make the same available to the Customer and its auditors.

20.12

The Service Provider shall provide all reasonable assistance and information in relation to the conduct of the audit at its own cost. For the avoidance of doubt such information shall not include the provision of any background cost or overhead information or any the Service Provider internal reports relating to the Services (although the Service Provider shall act reasonably in this regard).

20.13

The Service Provider shall establish and maintain a system of internal audits to provide management with assurance that a quality assurance system is being utilised, is effective, meets customer and business needs and continues to improve (“ Internal Audits ”).

20.14

The Service Provider shall maintain internal controls lists in a manner consistent with Good Industry Practice and provide confirmation of the same at least once per year.

20.15

The Service Provider shall also provide a copy (if any) of its own independent audit reports concerning International Standard on Assurance Engagements No. 3402 (ISAE 3402) Assurance Reports on Controls at a Service Organisation to the Customer within a reasonable time after such reports are completed.

20.16

Should any Internal Audit identify an overcharge, the provisions of clauses 20.7 and 20.8 shall apply.

21.

CUSTOMER DEPENDENCIES

21.1

The Service Provider’s sole and exclusive remedy for the Customer failing to meet any of its Customer Dependencies is set out in this clause 21 and the Service Provider shall not be entitled to sue the Customer for breach of contract or terminate the Agreement due to a failure of the Customer to meet the Customer Dependencies.

21.2

The Service Provider shall be excused from failures to perform its obligations under this Agreement if the Customer delays or fails to provide the Customer Dependencies but only:

21.2.1

to the extent that such failure directly causes Service Provider’s failure to perform;

21.2.2

provided that such acts or omissions are not undertaken by the Customer at the Service Provider’s direction or with the Service Provider’s written consent;

21.2.3

provided that the Service Provider gives the Customer prompt written notice of the Customer’s failure to perform the Customer Dependencies; and

21.2.4

provided the Service Provider uses Commercially Reasonable Efforts to mitigate the adverse consequences of the Customer’s failure and continues to provide the Services.

21.3

Provided the Service Provider has complied with the obligations set out in clause 21.2 and has obtained the Customer’s prior written approval, the Service Provider will be entitled to receive a reasonable adjustment in the timeframes set out in the Transition Plan or schedule to deliver and its reasonable, demonstrable, unavoidable costs incurred directly as a result of the Customer’s failure to perform the relevant Customer Dependency.

21.4

The Service Provider shall only be entitled to relief under this clause 21 from the date on which it notifies the Customer in accordance with clause 21.2.3.

22.

CHARGES

22.1

The Service Provider’s pricing shall not be subject to or contingent upon any due diligence to be performed after the Effective Date or, if earlier, the relevant Service Commencement Date.

22.2

In the event the Parties agree that a particular pass-through expense is to be paid directly by the Customer, such pass-through expense shall not be subject to any mark-up and the Service Provider shall provide the Customer with the original third party invoice together with a statement that the Charges are proper and valid and should be paid by the Customer.

22.3

In consideration for the provision of the Services the Customer shall pay to the Service Provider all undisputed Charges within forty-five (45) days from the date on which it receives a correctly rendered invoice.

22.4

In the event of late payment the Service Provider reserves the right to charge interest on amounts overdue at a rate of two per cent (2%) above the annual base rate of the Bank of England from time to time.

22.5

Except as otherwise agreed by the Parties in writing, no rates or charges other than those set out in clauses 22.3 and 22.4 shall be applicable to the provision of the Services under this Agreement.

22.6

The Service Provider shall only be entitled to invoice the Customer for its expenses if such expenses have been approved in writing in advance and are incurred in accordance with the version of the Customer’s expenses policy notified to the Service Provider from time to time.

22.7

The Service Provider shall maintain complete and accurate records of, and supporting documentation for, the amounts billable to and payments made by the Customer under this Agreement and the Service Provider shall provide the Customer with documentation and other information with respect to each invoice as may be reasonably requested by the Customer to verify accuracy and compliance with the provisions of the Agreement.

22.8

The Customer shall have the right to deduct from amounts owed by the Customer to the Service Provider amounts that the Service Provider is obliged to pay to or credit to the Customer under the Agreement.

22.9

The Customer may withhold payment of particular Charges that the Customer reasonably and in good faith disputes on notice to the Service Provider.

22.10

If the Customer disputes a part of an invoice, the Service Provider shall re-issue an invoice for the undisputed Charges and the Customer shall pay such undisputed Charges in accordance with clause 22.3. The Parties shall diligently pursue an expedited resolution of such dispute in accordance with the clause 49 (Dispute Resolution)

22.11

The Service Provider shall render invoices in accordance with paragraph 3 of Schedule 10 (Charging & Invoicing).

22.12

The Service Provider shall issue a consolidated report on the last day of each month comprising details of the invoices for that month.

23.

TAX

23.1

All prices are exclusive of value added tax or any other locally applicable equivalent sales taxes (“ VAT ”), which is payable at the rate and as prescribed by law.

23.2

Unless otherwise agreed between the Parties, the Service Provider will be responsible for all other taxes which are incurred as a result of this Agreement and the Services being provided.

23.3

The Customer shall be entitled to deduct the sums required to pay any withholding taxes, demanded by any taxation authority, from payment to the Service Provider.

23.4

If the Customer does deduct any amounts pursuant to clause 23.2, it shall pay such sums to the relevant taxation authority within the period for payment permitted by law, and furnish the Service Provider with evidence of payment of the relevant amount from the relevant tax authority.

23.5

If VAT or other taxes are payable on damages payable or paid under this Agreement then the Party liable for payment of such damages must pay any such VAT or other taxes in addition to the relevant amount of damages upon production of a valid VAT or other appropriate tax invoice by the other Party.

24.1.1

the Charges applicable to the Services it provides under this Agreement shall be competitive and offer value for money to the Customer; and

24.1.2

the Performance Standards applicable to the Services shall accord with Good Industry Practice,

24.2

It is agreed that, in accordance with the terms of Schedule 11 (Benchmarking Procedure) at any time following the expiry of the period of twenty-four (24) months after the Effective Date, the Customer may have the Service performance and prices reviewed by a Benchmarker in order to evaluate the Service efficiency, effectiveness and productivity, and whether the Charges, costs and Performance Standards applicable to the Services are competitive in the market place.

25.1

Each Party shall retain its rights in its own Pre-existing Intellectual Property Rights (IPR). Except as provided in this clause 25 (Intellectual Property Rights), neither Party shall gain by virtue of the Agreement any rights of ownership in any IPR owned by the other Party or any third party.

25.2

The Service Provider shall procure that all Service Provider Personnel waive all moral rights in any item provided to, or used by, the Customer in connection with the Agreement, save that, for certain projects, prior to the agreement of the same, the Parties may agree to vary this clause.

25.3

Developed IPR shall be solely owned by the Customer and shall vest in the Customer on creation.

25.4

The Service Provider may use the Developed IPR solely to provide the Services to the Customer during the Term.

25.5

To the extent that title and/or ownership rights may not automatically vest in the Customer as contemplated by clause 25.3, the Service Provider agrees to irrevocably assign, transfer and convey to the Customer all rights, title and ownership in the Developed IPR. The Service Provider shall and shall procure that Service Provider Personnel shall give the Customer or its designees, all reasonable assistance and execute all documents necessary to assist or enable the Customer to perfect, preserve, register or record its rights in the Developed IPR at the Customer’s cost.

25.6

The Service Provider shall ensure that where it develops new Software for the Customer, it shall deliver the same in Source Code and object code form, with appropriate Documentation and that both versions shall be able to be used by a reasonably skilled programmer familiar with the relevant software language.

25.7

The Service Provider shall ensure that at all times it keeps all Documentation related to any product (or a component thereof) up to date.

25.8

Save to the extent clause 25.10 applies to any Materials provided by the Service Provider to the Customer hereunder, the Service Provider grants to the Customer and the Customer Group an irrevocable, royalty free, world-wide, non-exclusive, transferable licence (at no additional charge and including the right to sub-licence) to use, copy, modify, and prepare derivative works of:

25.9

The Service Provider shall use Commercially Reasonable Efforts and at mutually agreed terms (but at no additional cost), to procure the grant to the Customer and the Customer Group and, to the extent necessary, its sub-contractors, agents and representatives of a world-wide, fully paid up, non-exclusive licence to use, modify, enhance and maintain Third Party Materials produced specifically to provide the Services to the Customer and that are licenced or otherwise supplied to the Service Provider in connection with the Services.

25.10

The Parties acknowledge and agree that from time to time the Service Provider may propose the use of its own or third party proprietary products that are typically licenced on stand-alone terms (the “ Digital Products ”) and that subject always to agreement between the Parties as to such terms, any such Digital Products shall be licenced on separate terms (and subject to escrow requirements, or not, in accordance with such separate terms) and the remainder of this clause 25 shall not apply to their use. The Service Provider undertakes to ensure that the impact of the use of Digital Products on the Customer’s receipt of the Services and the wider terms of this Agreement is minimised. As at the Effective Date the only Digital Product contemplated is the Service Provider’s solution branded as ‘Sequence’ and that the terms applicable to the Customer Group’s use of this Digital Product (but not any other or future Digital Products) are as set out in Schedule 14 (Sequence Licence). The Parties agree that during the Term of this Agreement and any Termination Assistance Period the licence to use the Digital Product shall be as set out in Schedule 14 (Sequence Licence) and that following the completion of the provision of Termination Assistance by the Service Provider they shall enter into a separate ongoing licence agreement on the terms set out in Schedule 14 (subject to the variations applicable following completion of Termination Assistance and in consideration of the costs identified in Schedule 14) at the Customer’s sole and absolute discretion.

25.11

The Customer grants to the Service Provider a non-exclusive, non-transferable, revocable licence (including the right to sub-licence, but only to sub-contractors approved by the Customer in accordance with this Agreement) to use, copy, modify, and prepare derivative works of Customer IPR for the sole purpose of providing the Services to the Customer for the Term (which includes any applicable Termination Assistance Period).

25.12

Save to the extent that clause 25.10 applies, the Service Provider shall ensure that the Source Code in the Service Provider Software together with any related Documentation, is deposited in escrow with Legal Escrow & Arbitration Services Limited pursuant to the terms of an Escrow Agreement which is substantially in the terms published by Legal Escrow & Arbitration Services Limited from time to time.

25.13

The Service Provider and the Customer mutually undertake to sign the Escrow Agreement promptly following signature of this Agreement. The Service Provider additionally undertakes to procure that Legal Escrow & Arbitration Services Limited promptly signs the Escrow Agreement.

25.14

Nothing contained in the Agreement shall restrict either Party from the use of any general ideas, concepts, know-how, methodologies, processes, technologies, algorithms or techniques retained in the unaided mental impressions of such Party’s personnel relating to the Services which either Party, individually or jointly, develops or discloses under the Agreement provided that in doing so such Party does not:

25.14.1

infringe the Intellectual Property Rights of the other Party or third parties who have licenced or provided materials to the other Party; or

25.14.2

breach its confidentiality obligations under the Agreement or under agreements with third parties.

26.

CONFIDENTIAL INFORMATION

26.1

Subject to clause 26.2, each receiving Party will treat and keep all Confidential Information of the disclosing Party as secret and confidential and will not, without the disclosing Party's written consent, directly or indirectly communicate or disclose (whether in writing or orally or in any other

26.2.1

the Receiving Party needs to disclose the Confidential Information of the Disclosing Party to any of its Affiliates or sub-contractors in order to fulfil its obligations, exercise its rights under this Agreement or to receive the benefit of the Services, provided always that the Receiving Party shall ensure that every person to whom disclosure is made pursuant to this clause 26.2.1 uses such Confidential Information solely for such purposes, and complies with this clause 26 to the same extent as if it were a Party to this Agreement;

26.2.2

any Service Provider Confidential Information is embodied in or otherwise incorporated into any item provided as part of the Services;

26.2.3

such Confidential Information is in the public domain at the Service Commencement Date or at a later date comes into the public domain, other than as a result of breach of this Agreement;

26.2.4

the Receiving Party obtains or has available such Confidential Information from a source other than the Disclosing Party without breaching any obligation of confidence;

26.2.5

subject to clause 26.3, such Confidential Information is required to be disclosed pursuant to any Relevant Law or the rules of any Regulator or stock exchange; or

26.2.6

the Receiving Party can show such Confidential Information was independently developed by it otherwise than in connection with this Agreement.

26.3

Notwithstanding clause 26.1, the Customer may disclose Confidential Information to its solicitors, auditors, insurers, accountants or other operational or service-related advisers for the purposes of reporting to or seeking advice from the relevant party. In such circumstances the Customer shall ensure that every person to whom disclosure is made pursuant to this clause 26.3 uses such Confidential Information solely for such purposes and complies with this clause 26 to the same extent as if it were a Party to this Agreement.

27.

DATA PROTECTION

27.1

The categories of personal data to be processed by the Service Provider, categories of data subjects whose personal data will be processed, and the nature and purpose of processing activities to be performed under this agreement is set out in Schedule 21 (Data Processing and Transfer) of this Agreement.

27.2

Each Party shall comply with its respective obligations under applicable Data Protection Legislation and, without prejudice to the foregoing, the Service Provider shall not process Customer Personal Data in a manner that will or is likely to result in the Customer breaching its obligations under Data Protection Legislation.

27.3

Upon termination or expiry of this agreement, the Service Provider shall, at the Customer’s request, promptly delete or return all Customer Personal Data and delete the copies thereof (unless otherwise required by Data Protection Legislation or other Relevant Laws) in its possession and shall certify to the Customer that it has done so.

27.4

The Parties acknowledge that, in respect of all Customer Personal Data processed by the Service Provider for the purpose of the provision of Services under this Agreement:

27.4.1

the Customer alone shall determine the purposes for which and the manner in which such Customer Personal Data will be processed by the Service Provider;

27.5

Where in connection with this Agreement the Service Provider processes Customer Personal Data as the data processor of the Customer, the Service Provider shall:

27.5.1

process Customer Personal Data only on behalf of the Customer, only for the purposes of performing this Agreement and only in accordance with instructions contained in this Agreement or as otherwise received from time to time; the Service Provider shall notify the Customer prior to taking any further action if it considers an instruction to be likely to result in processing that is in breach of Data Protection Legislation;

27.5.2

not otherwise modify, amend, disclose or permit the disclosure of any of the Customer Personal Data to any third party (including a data subject) unless specifically authorised or directed to do so in writing by the Customer;

27.5.3

implement and maintain appropriate technical and organisational measures to protect Customer Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration, disclosure or theft. Upon the Customer’s request, the Service Provider shall provide the Customer with a written description of the technical and organisational measures implemented by itself and its sub-contractors as well as copies of all documentation relevant to such compliance including, protocols, procedures, guidance, training and manuals;

27.5.4

ensure the reliability of any of the Service Provider's Personnel with access to Customer Personal Data, that such access is granted on a ‘need to know’ basis, and that they are subject to binding obligations of confidentiality with respect to Customer Personal Data;

27.5.6

at no additional cost, provide full cooperation and assistance to the Customer as the Customer may require to allow the Customer to comply with its obligations as a data controller, including in relation to data security, data breach notification, data protection impact assessment, prior consultation with data protection authorities, any enquiry, notice or investigation received from a data protection authority, and the fulfilment of data subject’s rights;

27.5.7

promptly and without delay (but in any event within twenty-four (24) hours of becoming aware of it), notify the Customer in writing of any actual, alleged, or potential unauthorised disclosure, loss, destruction, compromise, damage, alteration, or theft of Customer Personal Data (including unauthorised access to or use of the Customer Systems or data, improper handling or disposal of data, theft of information or technology assets,

27.5.8

permit physical inspections in accordance with clause 20 of the areas of the Service Provider’s relevant premises from where Services are provided, by the Customer or its representatives to ensure compliance with this clause 27.

27.6

The Service Provider shall nominate a representative within its organisation who shall have responsibility to respond to Customer queries regarding the processing of Customer Personal Data and the Service Provider shall ensure that it responds to such queries promptly.

27.7

The Service Provider shall not authorise any third party or sub-contractor to process Customer Personal Data other than with the prior written consent of the Customer (for the avoidance of doubt, written consent shall be deemed given for Approved Sub-Contractors listed in this Agreement).

27.8

Where the Service Provider is a processor with respect to the Customer Personal Data, it shall impose obligations on its sub-contractors that are the same as or equivalent to those set out in this clause 27 by way of written agreement, and shall remain fully liable to the Customer for any failure by a sub-contractor to fulfil its obligations in relation to the Customer Personal Data.

27.9

Where the Service Provider is subject to an obligation in relation to Customer Personal Data or the Customer is granted a right in respect of the Service Provider, the Service Provider should procure that its sub-contractors are subject to equivalent obligations and that the Customer is granted the same right against the sub-contractors.

27.10

The Service Provider shall not process and/or transfer any Customer Personal Data in or to any country outside the European Economic Area without the prior written consent of the Customer.

27.11

If, for the purposes of the performance of this agreement, the Service Provider or any of its sub-contractors wishes to process and/or transfer any Customer Personal Data in or to a country outside the European Economic Area without prejudice to clause 27.10, the Service Provider shall comply with such other instructions and shall carry out such other actions as the Customer may notify in writing, including:

27.11.1

providing details of how the Service Provider will ensure an adequate level of protection for any such Customer Personal Data so as to ensure the Customer’s compliance with Data Protection Legislation; and

27.11.2

implementing any data transfer mechanism provided by the applicable Data Protection Legislation, such as the appropriate model contractual clauses approved by the European Commission as set out in Schedule 21 (Data Processing and Transfer), to allow for the lawful processing of Personal Data in a country outside the European Economic Area pursuant to the applicable Data Protection Legislation.

27.12

In the event that any act or omission of the Service Provider or any Service Provider group company in connection with this Agreement results in any losses being suffered by any Customer Group company, such losses will be treated as if they had been suffered by Customer and the Customer will be able to recover any such losses from the Service Provider in accordance with clause 34.4. For this purpose, any losses suffered by any Customer Group company will not be treated as being indirect or consequential in terms of clause 34.2 simply because it has been suffered by a Customer Group company and not by the Customer directly.

27.13

The Service Provider acknowledges that its obligations with respect to Customer Personal Data set out in this clause 27 shall also apply to the same extent to any of the Customer’s Confidential Information that is received by the Service Provider.

28.

PUBLICITY

28.1

The Service Provider shall not make any public announcement (whether written or oral) about the existence of the Agreement or that it is providing Services to the Customer without the Customer’s prior written consent (which may be withheld in its complete discretion). For the purposes of clause 12.6, the Customer’s consent to disclosure by the Service Provider is deemed to be given only to the extent that such disclosure is required for the Service Provider to comply with its obligations under clause 12.6.

28.2

In no circumstance shall either Party be authorised to use any of the other Party’s logos, trademarks or any other representations related to the other Party’s brand (including noting the other Party or its personnel as a referee) without the other Party’s prior written consent (which may be withheld in its complete discretion).

29.

REPRESENTATIONS AND WARRANTIES

29.1

Each Party represents, warrants and undertakes to the other, as at the date of this Agreement:

29.1.1

that it has the power and authority to enter into and perform its obligations under this Agreement;

29.1.2

that it has all necessary rights, licences, permissions and consents to provide or receive the Services; and

29.1.3

that the execution of this Agreement does not violate any law or constitute a default under any other agreement.

29.2

The Service Provider represents, warrants and undertakes to the Customer on a continuing basis throughout the term that:

29.2.1

it shall not conduct itself in a way so as to adversely affect the Customer’s public image;

29.2.2

it is not insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to it;

29.2.3

it shall allocate sufficient resources to provide the Services in accordance with the contractual requirements and use Commercially Reasonable Efforts to use the resources efficiently and services necessary to provide the Services;

29.2.4

it shall not knowingly and/or negligently insert or include, or permit or cause any Service Provider personnel to insert or include, any known Virus into any items provided to the Customer or the Customer Systems;

29.2.5

it shall use the latest available versions of anti-virus software available from an industry accepted anti-virus software vendor to check for and delete malicious software and Viruses from the Service Provider’s IT systems;

29.2.6

it shall co-operate with the Customer to reduce the effect of any Virus found and assist the Customer to mitigate any losses (including without limitation, loss of operational efficiency and loss or corruption of the Customer’s Data) and to restore the system, products, Deliverables and Services to their desired operating efficiency;

29.2.7

it has undertaken all diligence it requires (including in relation to the Customer’s existing services) in order to plan and perform the Services and that accordingly its prices and estimates are robust and may be relied upon by the Customer;

29.2.8

it is skilled and experienced in the provision of services akin to the Services and in using the tools, methodologies and procedures it is proposed that it will use in the delivery of Services hereunder;

29.2.9

all information it provides to the Customer during the Term shall, at the time it is supplied, be true and accurate in all material respects;

29.2.11

it shall at all times conduct the performance of the Services in such a manner that shall ensure that the Customer does not fail to comply with the Customer regulatory requirements that have been notified to the Service Provider in writing (if any) as a result of or in connection with its receipt of the Services; and

29.2.12

it shall comply with any Customer request or instruction that enables the Customer to comply with its regulatory requirements (if any) in respect of the Services at mutually agreed terms.

29.3

The Customer warrants that, to the extent that Customer Personal Data is provided to the Service Provider for processing (as that term is defined in the Data Protection Legislation), the Customer Affiliate providing such Customer Personal Data shall have a legal basis on which to do so.

30.

INDEMNITIES

30.1

The Customer will indemnify, defend and hold harmless the Service Provider against any claims, losses, damages, costs (including reasonable legal fees), expenses and liabilities incurred or suffered by the Service Provider in connection with any infringement (or claim of infringement) of any Third Party IPR, based upon the Service Provider’s use of Customer IPR provided to the Service Provider under this Agreement.

30.2

The Service Provider will indemnify, defend and hold harmless the Customer and its Affiliates and their respective officials, employees, agents and assigns (“ Customer Indemnities ”) against any claims, losses, damages, costs (including reasonable legal fees), expenses and liabilities incurred or suffered by the Customer and/or the Customer Personnel in connection with any of the following:

30.2.1

breach by the Service Provider or any of its Affiliates or the Service Provider Personnel of any of the Service Provider’s confidentiality obligations under this Agreement;

30.2.2

breach by the Service Provider of any of the representations and warranties set out in clause 29.1;

30.2.3

employment costs, any claim for indemnification for Employment Liabilities made pursuant to Schedule 17 (Staff Transfer) and/or any employment claims of Service Provider Personnel;

30.2.5

any infringement (or claim of infringement) of any Third Party IPR or other proprietary rights, alleged to have occurred because of Deliverables provided by the Service Provider to the Customer, or based upon the Service Provider’s performance or the Customer’s receipt or use of such Deliverables, products or Services.

30.3

Without prejudice to its obligations pursuant to clause 30.2.5, if any Deliverable or Service, other item or Material provided by the Service Provider or the provision of the Services by the Service Provider is, or in the Service Provider’s reasonable judgement is likely to become, the subject of a claim (an “ Infringing Item ”), the Service Provider, at its expense and in addition to the indemnity and defending the claim, will procure for the Customer the right to use and continue using the Infringing Item or replace it with a non-infringing equivalent or modify it to make its use non-infringing, provided that such replacement or modification does not result in a degradation of the performance or quality of the Infringing Item.

30.4

The following procedures will apply with respect to indemnification for third-party claims arising in connection with the Agreement save that the indemnified party shall only give the indemnifying party the right to control third party litigation relating to a third party claim that is subject to indemnification by the where the claim relates to IPR:

30.4.1

as soon as reasonably practicable after receipt by an indemnified party of written notice of the assertion or the commencement of any claim, demand, action, cause of action or other proceeding by a third party, whether by legal process or otherwise (a “ Claim ”), but no later than fourteen (14) days following receipt of written notice from the indemnified

30.4.2

if the indemnifying party delivers the Notice relating to any claim within the required notice period, the indemnifying party will be entitled to have sole control over the defence and settlement of such Claim;

30.4.3

if the indemnifying party fails to assume the defence of any such Claim within the prescribed period of time, then the indemnified party may assume the defence of any such Claim at the cost and expense of the indemnifying party; and

30.4.4

subject to the payment of its reasonable costs, the indemnified party shall provide reasonable assistance to the indemnifying party, including reasonable assistance to the indemnifying Party’s employees, agents, independent contractors and Affiliates, as applicable. Notwithstanding any provision of this clause 30 to the contrary, the indemnifying party will not consent to the entry of any judgment or enter into any settlement that provides for injunctive or other non-monetary relief affecting the indemnified party without the prior written consent of the indemnified party, such consent not to be unreasonably withheld or delayed.

30.5

The Service Provider shall procure that the Customer receives the full benefit and protection of any IPR indemnity that the Service Provider has in relation to IPR which is not owned by the Service Provider (whether third party IPR or otherwise) but is supplied to the Customer pursuant to the Agreement unless the Customer has previously agreed in writing to waive this requirement.

31.

FORCE MAJEURE

31.1

Neither Party shall be liable for default or delay in the performance of its obligations under the Agreement:

31.1.1

if the default or delay is caused by a cause beyond the reasonable control of such Party (it being agreed that causes beyond the reasonable control of a Party shall not include strikes or lock outs of its own personnel); and

31.1.2

provided the non-performing Party is without fault in causing the default or delay and the default or delay could not have been prevented by reasonable precautions (which for these purposes shall include complying with that Party’s Disaster Recovery Plan and/or Business Continuity Plan or, if of a higher standard, disaster recovery plans consistent with Good Industry Practice) or circumvented by workarounds.

31.2

The non-performing Party shall be excused from further performance or observance of the obligation(s) so affected for as long as:

31.2.2

the Party continues to use its best efforts to recommence performance or observance whenever and to whatever extent possible without delay.

31.3

A Force Majeure Event shall not relieve the Service Provider of its obligations to supply the Services in conjunction with implementing its Disaster Recovery Plans or Business Continuity Plans, including requiring that essential personnel report to work during an emergency, and any or all personnel work at a contingency location.

31.4

In the event that a Force Majeure Event interrupts the provision of Services for in excess of thirty (30) days the Customer may terminate the Agreement in whole or in part on the provision of written notice.

32.

STEP IN

32.1

If:

32.1.1

any default or non-performance by the Service Provider occurs and as a result, the performance of any business critical service is prevented, hindered, degraded or delayed for more than two (2) consecutive days;

32.1.2

the Service Provider is excused from the performance of the Services pursuant to a Force Majeure Event; or

32.2

In exercising its rights of Step In the Customer may perform any act that the Customer deems reasonably necessary in order to restore the Services (including by engaging a Third Party

32.3

Unless Step In is instigated due to the events set out in clauses 32.1.2 and/or 32.1.3 (except in the event that the Regulator requires Step In due to the Service Provider’s default), where a Third Party Service Provider is engaged in connection with a Step In, the Service Provider shall be liable for the payment of the difference between the sums that would have been paid to the Service Provider for the provision of those Services and the sums payable to the Third Party Service Provider for performing the same for as long as the failure to perform continues, and the Customer shall not be charged for Services that are not provided to the Customer as a result of a Force Majeure Event or the Service Provider’s default or non-performance. The Service Provider shall either pay directly or reimburse the Customer for any such third party costs incurred on an indemnity basis. Such payments made by the Service Provider may be credited against the Charges or paid by way of cheque or direct debit to the Customer, at the Customer’s option.

32.4

In the event of the Customer exercising its right of Step-In, the Service Provider shall co-operate with the Customer (and its agents or representatives, including any applicable Third Party Service Provider) and provide reasonable assistance at no charge to the Customer to restore such Customer function or the Services or any part of them as soon as reasonably possible, including giving the Customer (and its agents or representatives, including any applicable third party services provider) reasonable access to the Service Provider’s premises, Equipment, Material and Software, to the extent reasonably necessary for the purpose of restoring such Customer function or the Services or any part of them to the level required under this Agreement.

32.5

As soon as reasonably practicable following the restoration of the affected the Customer function or the affected part of the Services (meaning that its performance is no longer substantially prevented, hindered, degraded or delayed) to the Customer’s reasonable satisfaction or a Regulator lifting its Step In requirement, the Service Provider shall resume the performance of the relevant Services.

32.6

Nothing in this clause 32 limits the Service Provider’s liability to the Customer with respect to any default or non-performance by the Service Provider under this Agreement.

33.

ENHANCED CO-OPERATION

33.1

Where the Customer requires the right to do so in order to obtain an improved understanding of the Services or to assist the Service Provider to improve its performance (including in particular in the circumstances set out in clause below), the Parties agree that the Customer may nominate a certain number of its employees, agents or contractors (subject to clause 32.4), to be seconded to the Service Provider or any of its sub-contractors (“ Consultants ”). The number of Consultants shall be the minimum reasonably necessary (as determined by the Customer acting reasonably) for the limited purposes described in this clause 33.1 and the Customer agrees to appoint Consultants with a level of seniority appropriate to the tasks they shall be engaged in and to provide the Service Provider with at least five (5) Business Days’ notice of its intention to exercise its rights under this clause 33.

33.2

The circumstances that the Parties agree shall entitle the Customer to invoke its rights under clause 33.1 include where:

33.2.1

the Customer is entitled, or has reasonable grounds for believing that it will be entitled, to terminate the Agreement in whole or in part for cause;

33.2.2

the Service Provider is not performing any of the services in accordance with the Minimum Service Levels (if any);

33.2.3

the Service Provider is or the Customer has reasonable grounds for believing that the Service Provider is reasonably likely to be in material breach of its obligations under the Agreement;

33.2.4

the Customer has reasonable grounds to suspect acts of fraud are being committed by the Service Provider, any sub-contractor or any Service Provider Personnel;

33.2.5

the Service Provider causes the Customer to breach its legal or regulatory obligations; or

33.2.6

the Service Provider fails to provide the Services in accordance with the Agreement (whether such failure amounts to a material breach of contract or not) and that failure causes, or is in the Customer’s opinion likely to cause:

33.2.6.1

delay in delivery of the Services that means that the Service Provider will not be able to meet any Key Milestone date;

33.2.6.2

the degradation or unavailability of the Services which, in the Customer’s opinion, is unlikely to be resolved within a reasonable period of time; or

33.2.6.3

the Customer to incur a material loss, liability or cost whether direct or indirect or to suffer any adverse publicity.

33.3

No Consultant shall become an employee of the Service Provider, or have a legal entitlement to any benefits conferred by the Service Provider on its employees, as a result of his or her secondment under this clause 33.

33.4

A Consultant may not be an employee of any entity who competes with the Service Provider in the field of system integration services unless they are an employee of the Customer.

33.5

The Consultants shall be given full access to all information (other than information related to the Charges) that is available to all relevant Service Provider Personnel and that is related to the performance of the Services that are relevant to the purposes described in clauses 33.1 and

33.6

Service Provider shall not be obliged to follow any suggestions given by the Consultants.

33.7

If the Service Provider does follow a suggestion of a Consultant, then the Service Provider shall be fully responsible for all consequences that flow from the suggestion as if it were the Service Provider’s own suggestion.

33.8

By exercising its right under this clause, the Customer shall not, and shall not be deemed to, assume any obligation to resolve any issue or problem with the Services or relieve the Service Provider of any obligation or liability in relation to that event. Without limiting the foregoing, nothing in this clause 33.8 shall be construed to limit the Service Provider’s obligation to continue to perform the Services in accordance with all applicable Service Levels or Milestone Dates.

33.9

A secondment under this clause may be terminated by the Customer at any time by giving written notice to the Service Provider, but shall in any event cease when the secondment has been effective for a continuous period of ninety (90) days (or such longer period as may be agreed between the Parties, such agreement may not be withheld by the Service Provider where clause 33.10 applies), when both of the following conditions are satisfied:

33.9.1

the event giving rise to the appointment of the Consultants under this clause has ceased and/or has been resolved or remedied; and

33.9.2

the Service Provider has demonstrated to the Customer’s reasonable satisfaction that the Service Provider has taken all reasonable measures accepted to ensure that the event giving rise to the appointment of the Consultants shall not reoccur.

33.10

Subject to clause 33.11, the Customer shall be responsible for paying the Consultants reasonable and demonstrable fees for the duration of the secondment, plus any reasonable, actual and demonstrable travel and subsistence costs incurred by the Consultants in relation to their secondment under this clause provided that the salaries of the Consultants are reasonable given their level of seniority and experience and Good Industry Practice (“ Consultant Costs ”).

33.11

Notwithstanding clause 33.10, the Parties agree that to the extent that the Customer exercises its rights due to an alleged Service Provider default and it transpires that the Service Provider was in default then then Service Provider shall be responsible for fifty per cent (50%) of the Consultant Costs.

33.12

The exercise by the Customer of its rights in this clause 33 shall be without prejudice to any other rights or remedies of the Customer.

34.1.4

the breach by the Service Provider or any of its sub-contractors or Service Provider Personnel of the duties of confidentiality contained in the Agreement;

34.1.5

any claim made under the Intellectual Property Right infringement indemnities set out in clauses 30.1 (Customer IPR Indemnity) and 30.2.5 (Supplier IPR Indemnity);

34.2

Subject to clause 34.1, the maximum aggregate liability of the Service Provider:

34.2.1

under the indemnity set out in clause 30.2.4 (Data Protection Indemnity) shall be limited to the greater of [***] US dollars (USD [***] ) or [***] per cent ( [***] %) of the of the total Charges paid or payable under the Agreement in the twelve (12) months immediately prior to the act or omission giving rise to such liability;

34.2.2

for damage to tangible property caused by the Service Provider’s or its sub-contractors negligence or Wilful Default shall be limited to the greater of [***] US dollars (USD [***] ) or [***] per cent ( [***] %) of the total Charges paid or payable under the Agreement in the twelve (12) months immediately prior to the act or omission giving rise to such liability; and

34.2.3

in respect of the indemnity in clause 30.2.2 (Warranty Breach Indemnity) shall be subject to the cap set out in clause 34.5.

34.3

Subject to clause 34.1, neither Party shall have any liability for any indirect or consequential losses suffered by the other Party or for any special or incidental damages, loss of profits, loss of business, loss of revenue, loss of goodwill, loss of anticipated savings or loss of data (other than as detailed in clause 34.4).

34.4

The exclusions above shall not exclude liability for the following heads of losses which the Service Provider will accept to be deemed direct losses or damages suffered by the Customer:

34.4.1

subject always to the Customer’s duty to mitigate, the costs of procuring and implementing an alternative to the Services provided (or not provided) by the Service Provider;

34.4.2

the cost of restoring lost or damaged data caused or contributed to by the Service Provider;

34.4.3

the cost of restoring damage to physical property caused or contributed to by the Service Provider;

34.4.4

additional wages, overtime and expenses incurred by the Customer or its sub-contractors or agents in performing or rectifying defective services and/or managing a third party’s performance of the same;

34.4.5

the public relations costs of repairing any brand or reputational damage caused by a default (whether by act, omission or otherwise) of the Service Provider;

34.4.6

subject always to the Customer’s duty to mitigate, cost savings that are agreed by the Parties in this Agreement; and

34.4.7

in the event that a default (whether by act, omission or otherwise) of the Service Provider prevents the Customer from running its business in the normal way, the costs of the remedial action necessary so as to re-enable such normal running together with the costs of implementing any temporary work-around.

34.5.2

[***] percent ( [***] %) of the total charges paid or payable under the Agreement in the twelve (12) months immediately prior to the act or omission giving rise to such liability.

34.6

Other than those losses which are unlimited as set out in clause 34.1, the Customer’s total aggregate liability under or in connection with this Agreement shall not exceed the total amounts paid or payable under the Agreement in the twelve (12) months immediately prior to the act or omission giving rise to such liability.

34.7

Any Service Credits or Liquidated Damages payable by the Service Provider to the Customer under the Agreement shall not count towards the limitations of liability. For the avoidance of doubt, the Parties acknowledge that in accordance with Relevant Law, any claim for damages shall be reduced by the amount of Service Credits or Liquidated Damages already paid by the Service Provider to the Customer in respect of the relevant liability so as to avoid double recovery by the Customer.

34.8.1

all relevant amounts already paid by the Customer to the Service Provider;

34.8.2

all relevant amounts invoiced but not yet paid by the Customer to the Service Provider; and

34.8.3

all relevant amounts not yet invoiced for any products, deliverables and/or services not yet performed (but would be as if the Agreement continued until the end of the term).

35.

INSURANCE

35.1

The Service Provider shall maintain at its own cost (and on request provide evidence to the Customer in the form of a broker’s letter) the following insurance policies with an insurer of good standing and having an A.M. best rating of at least A- for the term of this Agreement. Thereafter, the Service Provider shall manage its insurances in a prudent manner such that it has coverages no less than the limits specified below. Such policies and limits are as follows:

35.1.1

professional liability insurance for a minimum amount of [***] US dollars (USD [***] ) per claim and in aggregate;

35.1.2

public liability insurance including product liability insurance for a minimum amount of [***] US dollars (USD [***] ); per occurrence and in aggregate and these insurance limits may be achieved by a combination of primary and/or umbrella/excess liability policies;

35.1.3

employer’s liability insurance for a minimum amount of [***] GB Pounds ( [***] ) for the UK; and

35.1.4

such other insurances as mandated by law in jurisdictions from where the Services are provided.

35.2

The Service Provider shall not take out or hold any of the insurance coverage described in clause 35.1 with the Customer or any member of the Customer Group as a primary insurer (i.e. responsible for the first twenty five million US dollars (USD 25,000,000) of coverage) without

35.3

The Service Provider shall not during the term of this Agreement and for a period of six (6) years thereafter act or refrain from acting in such a way as would entitle the underwriter(s) of the policies required by clause 35.1 above to avoid or negate their liability to deal with any claim(s) which would otherwise be covered.

35.4

The Service Provider shall, whenever reasonably requested by the Customer, provide evidence of such insurance and of its currency.

36.

TERMINATION

36.1

The Customer may terminate for convenience this Agreement (in whole or in part) on ninety (90) days’ notice.

36.2

If the Customer terminates this Agreement pursuant to clause 36.1, it shall pay the Service Provider any applicable Liquidated Damages for early termination as are then applicable and agreed in the Price Book as set out in Appendix 10-E of Schedule 10 (Charging & Invoicing), and such payment shall be the Service Provider’s sole and exclusive remedy in connection with the early termination. If the Customer terminates this Agreement during the Initial Term for any other reason then, save as set out in this sentence, no penalty or payment shall accrue (other than due and payable Charges payable up to the date of termination or, if later, completion of the Termination Assistance activities) and accordingly the Liquidated Damages set out in Appendix 10-E shall not be payable save that the sum identified for the period in which termination takes place in the line item listed as “Unrecovered Discount (Deal Bonus)” in Appendix 10-E of Schedule 10 (Charging & Invoicing) shall be payable as Liquidated Damages. The Parties agree that such payment shall be without prejudice to the Customer’s other rights and remedies.

36.3

The Customer may terminate the Agreement for material breach by the Service Provider, immediately if it is not capable of remedy, or after thirty (30) days from the Customer providing the Service Provider with written notice of the material breach if it is capable of remedy but remains unremedied.

36.4.2

on thirty (30) days’ notice in the event of persistent breaches of the Agreement;

36.4.3

forthwith where a Key Milestone for Transition is missed by more than a period of time specified as such in the Transition Schedule;

36.4.4

forthwith in the event of a Material Adverse Change occurs in relation to the Service Provider;

36.4.5

forthwith in the event of a Change of Control of the Service Provider (other than an internal re-organisation within the Service Provider Group) which raises a legitimate concern for the Customer, provided that the Customer gives notice to terminate on this basis within ninety (90) days following the Customer becoming aware of the Change of Control, such notice to specify the date upon which termination shall become effective;

36.4.6

forthwith in the event of any breach by the Service Provider which causes the Customer or any member of the Customer Group to be in breach of its obligations pursuant to Relevant Law;

36.4.8

in the event of repeated failure by the Service Provider to engage with the governance procedures set out in this Agreement, including but not limited to, Schedule 12 (Governance and Service Management) where, following formal notice from the Customer, the Service Provider either:

36.4.8.1

fails to address and propose a plan to solve the concerns identified by the Customer within thirty (30) days of a notice requiring it do so; or

36.4.8.2

fails to then deliver on the plan proposed by it pursuant to this clause by the dates specified in the plan; or

36.4.9

forthwith in the event of any breach by the Service Provider which has a material adverse impact on the Customer’s reputation (or that of the Customer Group) or leads to material adverse publicity.

36.5

If the Customer terminates this Agreement in whole or in part and the Customer has paid any Charges in advance for Services it has not yet received, an amount equal to such Charges shall be repayable, subject to a pro-rated reduction.

36.6

If the Service Provider believes that any termination by the Customer constitutes a wrongful repudiation of the Agreement, then the Service Provider agrees that it will not affirm the Agreement and any wrongful repudiation shall, if proven, be deemed to be termination for convenience by the Customer.

36.7

The Service Provider may only terminate this Agreement on written notice to the Customer due to:

36.7.1

the Customer’s failure to pay undisputed Charges, for which properly submitted invoices have been delivered, by the due date for payment, provided that:

36.7.1.1

the Customer fails to remedy the failure to pay within fifteen (15) days of its receipt of the Service Provider’s written notice of the failure to pay; and

36.7.1.2

the Service Provider provides the Customer a further notice of the failure to pay and the Customer fails to remedy the failure to pay within ninety (90) days of its receipt of such further notice;

36.7.2

a material breach by the Customer of the licence conditions set out in clause 25.8; or

36.7.3

its obligations under clause 26 (Confidential Information), provided the Customer fails to remedy the relevant breach (if capable of remedy) within sixty (60) days of its receipt of the Service Provider’s written notice of the relevant breach.

36.8

If the Service Provider terminates this Agreement pursuant to this clause 36.7 then, without prejudice to its other rights and remedies but provided always there is no double recovery of its losses, it shall be entitled to be paid the sums payable in the event of early termination as are then applicable and agreed in Appendix 10-E of Schedule 10 (Charging & Invoicing).

37.

TERMINATION ASSISTANCE/EXIT

37.1

Subject to clause 37.4, for up to twelve (12) months following the Effective Date of termination or expiration of the Agreement or following the date of any notice of termination, at the Customer’s election and request the Service Provider shall provide Termination Assistance to the Customer.

37.2

Actions by the Service Provider under this clause 37 shall be subject to the provisions of the Agreement.

37.3

Charges for Termination Assistance activities by the Service Provider shall be at the services rates, or other rates, as specified in Schedule 15 (Exit Plan and Service Transfer Arrangements) (which shall not be more than the rates in the ‘Offshore Rate Card’ and/or the ‘New Services Rate Card’ set out in the Price Book (Appendix 10-A) or at such lower rates as agreed by the Parties according to Schedule 10 (Charging & Invoicing)).

37.4

The Service Provider represents and warrants that the Termination Assistance Services shall be provided to permit the Customer to readily continue the provision of the Services in-house or by a replacement service provider and eliminate or minimise any disruption or deterioration of the Service, including, but not limited to, the following:

37.5

The Customer shall procure that any Successor Service Provider shall enter into a confidentiality agreement with the Customer on terms no less onerous than those set out in clause 26 (Confidential Information).

38.

COMPLIANCE WITH LAWS

38.1

The Service Provider shall perform its obligations in a manner that complies with all Relevant Laws (which shall include all Laws affecting the Customer’s business of which the Service Provider is aware or should, acting as a prudent supplier of services to businesses in the Customer’s sectors and geographies, have been aware of). The Service Provider’s obligations pursuant to this clause shall include identifying and procuring any required permits, certificates, approvals and inspections. If a charge of non-compliance with such Laws occurs, the Service Provider shall promptly notify the Customer in writing. Any actual failure to so comply shall give the Customer the right to terminate this Agreement for irremediable material breach pursuant to clause 36.3.

38.2

The Customer shall notify the Service Provider of any material changes in any Relevant Laws affecting its business and of which it becomes aware in the ordinary course of its business (provided always that this shall not release the Service Provider from its own obligations to keep abreast of all Relevant Laws affecting its business and the ongoing provision of the Services).

38.3

The Service Provider shall make any modifications to the Services as reasonably necessary as a result of such changes at no extra cost to the Customer other than where the relevant modification is required to address a change in legislation that is specific to the Customer in which event the effect on cost shall be assessed by the Contract Change Control Procedure.

38.4

The Service Provider shall be responsible for any fines and penalties imposed on the Service Provider or the Customer arising from any non-compliance by the Service Provider, its personnel or agents with any Relevant Laws.

39.

TRANSFER OF THIS AGREEMENT

39.1

The Customer may assign the Agreement within the Customer Group, to any entity that acquires it or with the Service Provider’s consent (not to be unreasonably withheld) to any third party.

39.2

Apart from the specific rights to transfer, novate or assign specified in clause 39.1, neither Party may assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the other Party’s prior written consent (such consent not to be unreasonably withheld or delayed). For the avoidance of doubt, it is reasonable for the Customer to withhold its consent to any proposed assignment, novation or other transfer by the Service Provider to any person (the “ Transferee ”), if the Customer determines (in its sole and absolute discretion) that the Transferee is of lesser financial standing to the Service Provider or has a lesser standing or perceived ability to provide services of the quality required by this Agreement.

39.3

The Service Provider shall use its reasonable endeavours to notify the Customer in advance of any Change of Control and in any event shall notify the Customer within ten (10) days of any Change of Control occurring.

40.

NO PARTNERSHIP, AGENCY ETC

40.1

Nothing in this Agreement is intended to create a partnership or the relationship of principal and agent or employer and employee between the Parties. Neither Party has the authority or power to bind, to contract in the name of or to create a liability for the other in any way or for any purpose, save as specified in Schedule 2 (Service Tower Specification).

41.

NOTICES

41.1

All formal notices and communications between the Parties and/or to any Affiliate made in the course of this Agreement are to be in writing and shall be deemed to have been received by the addressee at the times stated below, provided that the notice of communication is addressed to the recipient at the address specified below, is marked for the urgent notification of the specified point of contact as notified in writing to the other Party from time to time in accordance with this clause 41 and is properly franked or otherwise sent postage prepaid: